Breach of Fiduciary Duty

Every so often an appellate opinion, whether published or unpublished, will have portions that are worth mentioning in terms of less-than-stellar behavior. 

Here are some excerpts:

"Two weeks before their meeting, Lovett learned through his own research that Ruby was entitled to a share of the real property owned by her grandmother's trust. The record is silent as to whether he informed Ruby about his discovery. Instead, Lovett prepared an "Agreement" which purported to give him as a fee 85 percent of the value of any real property "left behind" in Yvonne's name which he recovered for Ruby." 

An 85% finder's fee was unconscionably high as determined by the probate court. 

I am baffled that the agent would think that this was proper. Their rationale, presumably, was that this sort of "arrangement" had worked in the past without retribution.

"(b) If any interest in real property is found, and that real property is found to have any equity value, I agree for services rendered on my behalf that I ask for the first 15% of any value, if any value is found, come to me Ruby R. Revell as beneficiary, and I relinquish any right to any percentage of value up to and above 15% in any real property found to have any equitable value for services rendered on my behalf."

A very crafty way of drafting such an arrangement to put it charitably. 

Large numbers capture one's attention when reading. So instead of using a large number to reflect his fee, 85%, the agent used a small number, 15%, to reflect her fee. This drafting style can hardly be seen as laudable. The proper way to draft an agreement is to make the terms clear and understandable, not opaque and misleading.

"On December 29, 2011, Lovett drafted another letter to Gary Ryan on BLG's letterhead. He forged Burlison's name on the letter and copied himself on the letter to make it look like the letter was really been written by Burlison."

Succinctly stated, forgery is never good. 

"He falsely told Ryan that Ruby was not entitled to information and that she had to wait for her money from the State, when all along he had it in his possession not subject to any court or state order."

When a litigant acts in such a cavalier fashion, a bad result is almost a certainty. This case was no different.

Revell v. Burlison Law Group, APC et al., Los Angeles County Superior Court, case #
BP140980. The above quoted language is from the unpublished appellate opinion regarding this case.

Power of Attorney - Agent's Authority

When a principal appoints an agent, the agent's authority is limited by the scope of the authorizing document. 

For example, if the principal only permits the agent to sell the principal's house while they are on vacation, this would not entail allowing the agent to mortgage the property, lease the property or host a massive party at the house by a local fraternity such as Lambda Lambda Lambda. 

Conversely, if the principal gave the agent the authority to encumber the property, in addition to selling it, the agent would be permitted to mortgage the property. Similarly, if the principal gave the agent the authority to retain any outside professional necessary to sell the property, the agent could retain a plumber, roofer, carpenter, etc.

In a recent appellate decision, the central issue in the case was whether "whether an attorney-in-fact who admitted her principal to a residential care facility for the elderly made a "health care" decision. If she did, as the trial court found, she acted outside the scope of her authority under the power of attorney, and the admission agreement she signed, and its arbitration clause this appeal seeks to enforce, are void."

Hutcheson v. Eskaton Fountainwood Lodge (2017) __ C4th__

In this case, the agent admitted the principal to a residential care facility because of health issues. "A medical appraisal performed the day of her admission disclosed Lovenstein was suffering from dementia and seizures. She was confused and disoriented. She engaged in inappropriate, aggressive, and wandering behaviors. She was not able to follow instructions consistently, and she was depressed. She required "complete" supervision."

The principal's doctor recommended that the agent return the principal to her home because the residential care facility allegedly over-medicated the principal. Unfortunately, matters went awry when the agent went to retrieve the principal.

"On March 22, 2012, Charles went to FountainWood to pack Lovenstein's belongings and move Lovenstein into her home. However, Lovenstein choked on her lunch at FountainWood that day and was transferred to a hospital. Doctors allegedly diagnosed her with aspiration pneumonia and severe dysphagia (difficulty in swallowing). She remained hospitalized until March 28, 2012, and died on April 11, 2012."

Ultimately the court found that the agent had made a health care decision by admitting the decedent to a residential care facility. Thus, the agent had acted outside her authority under the power of attorney agreement, as it did not authorize her to make a "health care decision." Consequently, the arbitration clause was not binding on the plaintiffs because the principal, through her agent, had not validly executed the binding arbitration agreement. 

Power of Attorney Abuse

A power of attorney is a very practical tool that can make life much easier for the principal (the person granting power of attorney). For example, if the principal is unable to manage their financial affairs or is out of the country, their agent can step into their shoes to execute the task. 

The danger though is that occasionally the principal can be exploited by an unscrupulous agent. The reason being is that the agent generally has unfettered discretion to act on the principal's behalf. Thus, the agent can access bank accounts, sell real property and change title to financial accounts even if not in the principal's best interest.

Anne and Lee Nutting lived in Berkeley, CA. A neighbor of theirs was Paul Seeman, an attorney who practiced juvenile law. In December 1998, Lee fell at the residence and needed medical assistance. Following an investigation of the residence by authorities, the Nuttings were determined to be hoarders and the house was found to be as uninhabitable. Consequently, they were forced to re-locate to a nearby hotel. Mr. Seeman then stepped in to assist with their situation. He was granted durable power of attorney for the couple in January 1999. Later in 1999, when Mr. Nutting passed away, Mr. Seeman began to engage in deplorable behavior.

As the agent for the Nuttings, Mr. Seeman was entrusted with acting in the best interests of the Nuttings. Unfortunately, Mr. Seeman failed spectacularly as their agent. This culminated in pleading guilty to 2 felonies, one count of elder abuse and one count of perjury, in Alameda County Superior Court in August 2013. According to police reports, Mr. Seeman placed his name on Mrs. Nutting's bank accounts as a joint tenant, named himself as the beneficiary of Mrs. Nutting' investment accounts and sold 2 Santa Cruz County properties owned by the Nuttings even though Mr. Nutting had passed away before then. None of these actions performed by Mr. Seeman were proper for an agent to commit.

What makes this case particularly troublesome is that Mr. Seeman became an Alameda County Superior Court judge during the time he first became the Nuttings' agent and then his conviction. From 2004-2009, he served as a court commissioner for Alameda County Superior Court. Then in March 2009 he was appointed to the bench of Alameda County by Gov Schwarzenegger. 

As part of his plea deal, he will be stripped off of his law license and be prohibited from ever serving as power of attorney for another elderly person again. He previously agreed to resign as a judge and to never seek another judgeship again.

Trust Income and Trust Principal

Wikimedia says this is a rental home, I''ll trust them

Many long-term trusts contain distribution clauses that state that the beneficiary will receive a certain portion of trust income every year, usually 100% and upon certain birthdays, e.g. their 30th birthday, the beneficiary is to receive a fraction of trust principal, e.g. 1/4. Of note, the latter beneficiary may or may not be the same as the former beneficiary. For example, the income beneficiary could be a child and the principal beneficiary could be a grandchild. A natural question that arises is "what is the difference between trust income and trust principal?" The answer to this question is quite simple,  trust income relates to the profits derived from trusts assets and trust principal relates to the asset itself.

For example, assume the trust's sole asset was a rental home with Tommy as trustee and Bobby as the lifetime income beneficiary and Beatrix as the remainder principal beneficiary. Rental income derived from the home would be classified as trust income. The home itself would be classified as trust principal. During Bobby's lifetime, Tommy would distribute to him the income derived from the rental home and when Bobby dies, the home would be distributed to Beatrix outright and free of trust.

The main reason why clients tend to design a trust this way is to benefit multiple generations. For instance, they can make their children the income beneficiary and their grand kids the principal beneficiary.

Still, I am not overly fond of these long-term trusts for a couple of reasons. First, there is an accounting issue that must be addressed. Per California law, each beneficiary is generally entitled to an annual accounting. A trust that last for 30 years would presumably require an accounting on 30 separate occasions. The amount of paperwork that must be documented then would be staggering. Second, income tax rates for trusts are quite steep. If a trust earns roughly $11,000 in income, the trust has reached the top income tax bracket. In contrast, for regular income taxes, a person has to earn hundreds of thousands of dollars before they reach the top income tax bracket. Third, assuming there is real property involved, ongoing maintenance costs would be significant. Numerous parts of a home require substantial expense in order to maintain it, plumbing, the roof, landscaping, heating, cooling, electrical, etc. 

In short, I rarely if ever advise a client to seek a long-term trust as the benefits rarely outweigh the costs. Regardless, it is the client's ultimate decision as to how they want to proceed, I just have to tell them of the risks involved. 

Advance Health Care Directive

If a person wishes to execute an advance health care directive, they have a number of options to choose from. The following are some examples of fill-in-the-blank forms that are used:

1. Statutory Advance Health Care Directive (Probate Code §4701)

The California probate code provides a template that a person may use for an advance health care directive. It provides instruction on how to complete and execute the document. Since there is no virtually no fee for this form, other than the printing cost, the cost-effectiveness of this option is a definite plus as compared to other options. However, the person will need to self-educate themselves on the topic of medical decision-making. Consequently, I know of no attorney who advises clients to utilize this method.

2. The California Medical Association (CMA) AHCD form.

The CMA produces a form that may be purchased online at its website for a fee. The CMA form is widely-recognized by health-care providers because it is the industry’s version of an AHCD. Hence, the concern of a health care provider not honoring a CMA AHCD dissipates. The form provides very easy to understand instructions on how to complete and execute the document. I personally use the CMA or CHA form for all of my clients.

3. The California Hospital Association (CHA) AHCD form.

The CHA, another trade association, also produces an AHCD. This form is free to download.The principal difference between this form and the CMA form is the clause pertaining to the prolonging of life. For the CMA Form, there are only two situations in which an individual may indicate a preference for not prolonging his or her life, if (1) the person has a terminal condition that will result in death in a matter of months or (2) an irreversible condition that renders the person unable to make decisions and life support is needed to keep the person alive. As for the CHA form, it contains a third option for prolonging life, (3) when the likely risks and burdens of treatment would outweigh the expected benefits.

Of note, the picture is the rod of Asclepius, the Greek symbol for medicine.

Advance Health Care Directive

Here are some commonly asked quesitons about advance health care directives (California's version of a living will):

1. What is an advance health care directive (AHCD)?

A legal document in which a person, the principal, appoints another person, the agent, to act on the principal’s behalf in making medical decisions should the principal ever become incapacitated.

For example, Peter is concerned about his future health because he is a professional race car driver. Peter appoints Allen as his agent to make health care decisions for him should he ever become incapacitated. If Peter ever is in an accident and becomes incapacitated, namely a coma, then Allen would step in and make health care decisions for Peter as dictated by Peter through Allen.

2. Who can write an AHCD?

An adult having capacity has the right to give an individual health care instruction. Prob C §4670. An adult is a person 18 or older. Whereas the Probate Code defines capacity as “a person's ability to understand the nature and consequences of a decision and to make and communicate a decision, and includes in the case of proposed health care, the ability to understand its significant benefits, risks, and alternatives.” Also, there is a rebuttable presumption that a person has capacity to draft an AHCD. Prob C § 4657. The end result is that the vast majority of adults can write an AHCD.

3. Does an AHCD require a notary?

No, an AHCD may be executed via witnesses or a notary. Prob C § 4674. However, the following four types of people cannot serve as witnesses:

a. The patient's health care provider;
b. An employee of the patient's health care provider;
c. The operators or employees of community care facilities and residential care facilities for the elderly; and
d. The agent. Prob C § 4674.

4. Why would I write an AHCD?

It is reasonable to assume that the majority of people would like to be in ultimate control of their medical decisions. By executing an AHCD, a person is afforded the opportunity to make future decisions even if they are not then able to do so.

If a person does not write an AHCD and becomes incapacitated, then a conservatorship of the person is needed in order to make medical decisions for them. In short, a conservatorship of the person is costly, because it is court-supervised, public, for a conservator needs to be appointed through the judicial process and avoidable, since an AHCD can substitute for a conservatorship of the person. In light of this, most people write AHCDs.

5. Who can serve as the agent?

A person 18 or older who has capacity can be appointed as a health care agent. However, the following 3 types generally may not be appointed as agent:

a. The supervising health care provider or an employee of a health care institution where the principal is receiving care; 
b. An operator or employee of a community care facility where the principal is receiving care; and 
c. An operator or employee of a residential care facility for the elderly where the principal is receiving care. Prob C § 4659.

6. If selected, am I obligated to serve as somebody’s agent?

No, a health care agent is free to decline to serve as somebody’s agent. Prob C § 4688.

7. What powers does the agent have?

The agent may make health care decisions for the principal to the same extent the principal could make health care decisions if the principal had the capacity to do so. Prob C §4683. Thus, an agent can grant consent, refuse consent, or withdraw consent to health care for the principal. Prob C §4617.

8. What powers does the agent not have?

The agent does not have the power to commit the principal to a mental health treatment facility or to authorize convulsive treatment, psychosurgery, sterilization or abortion. Prob C §4652.

Furthermore, the agent may not engage in a mercy killing or assisted suicide. Prob C §4653.

9. When does an AHCD become effective?

An AHCD usually becomes effective when the principal loses capacity. Prob C §4682. The principal can make the AHCD effective immediately but no reasonable person does this.

For example, if Peter appoints Allen as his health care agent but has capacity when he makes this appointment, Allen is not allowed to make health care decisions for Peter. However, if Peter were to be involved in a car accident and fall into a coma, he would lose capacity. Allen would then be allowed to make health care decisions for Peter.

10. Does an AHCD automatically expire on death?

Surprisingly an AHCD does not automatically expire on death unlike other power of attorney documents. An AHCD may grant the agent the power to dispose of the remains, authorize an autopsy and donate all or part of the principal's body for transplant, education, or research purposes. Prob C §4683(b).

11. Am I required to write an AHCD?

No, a health care provider cannot require a patient to possess an AHCD before administering treatment. Prob C §4677.

13. Are health care providers required to honor an AHCD?

Yes, a health care provider must comply with an individual health care instruction unless either it is contrary to the policy of the institution, and that policy has been adequately conveyed to the agent or the patient or it requires medically futile care or health care that is contrary to generally accepted standards in the health care community. Prob C §§4733-4735.

14. Can the agent access the principal’s medical records?

Yes, unless limited by the AHCD, the agent has the right to receive information about the principal's medical condition from all treating health care providers, and is authorized to review the principal's medical records and consent to their disclosure. Probate C §4678. 

California Power of Attorney

One common component of an estate plan is a power of attorney for financial management. The following are some often asked questions that address various aspects of a power of attorney. 

1. What is a power of attorney for financial management? 

A power of attorney for financial management is a document in which a person, the principal, designates an agent, the "attorney-in-fact, to act on his or her behalf in one or more financial transactions. In this situation, the agent binds the principal to the transactions entered into by the agent. Thus, the agent is not acting for themselves. Instead, the agent is acting on behalf of the principal. The agent is thereby not personally liable for the transactions entered into by them but instead the principal.

For example, Peter is in the process of selling his house to Bridget but needs to attend a funeral for his late Aunt Desdemona in New York City on the closing date. Peter designates Allen as his agent to execute the necessary paperwork to effect the sale of Peter’s home at closing. Here, Allen’s actions would bind Peter to sell his home to Bridget. Peter could not assert that he was not bound to sell his home to Bridget, even though he did not sign the closing documents. 

2. Why would I need a power of attorney? 

If you were to ever become incapacitated for whatever reason, a car accident for example, somebody would need to assume responsibility on your behalf to manage your financial affairs. Your incapacity is unfortunately not a valid legal reason to postpone paying your bills during the duration of your incapacity. Thus, your mortgage payment, credit cards and utility bills would not be put on hold if you were in a coma at the hospital. A power of attorney is thereby written to guard against unexpected and sudden incapacity because it provides an agent to serve on your behalf should you ever become unable to manage your own financial affairs.

Consequently, if you do not have a power of attorney and become incapacitated, then a court-supervised conservatorship would be required to manage your estate. A conservatorship is widely-regarded as expensive, time-consuming and cumbersome besides being open to public inquiry. 

3. What does durable and non-durable mean in terms of a power of attorney? 

A durable power of attorney allows the agent to act on the principal’s behalf despite the fact that the principal is incapacitated. In order to properly draft a durable power of attorney, California law requires that the following statements, or something substantially similar, be included in the durable power of attorney:

1. This power of attorney shall not be affected by subsequent incapacity of the principal.
2. This power of attorney shall become effective upon the incapacity of the principal. Prob C § 4124.

In contrast, a non-durable power of attorney is one that expires when the principal becomes incapacitated. 

4. When does a power of attorney become effective? 

A power of attorney may become effective immediately or spring into action later on. In an immediate power of attorney, the principal grants the agent the authority to act on the principal’s behalf the moment the power of attorney is property executed. Whereas in the case of a springing power of attorney, the agent’s ability to act springs forth upon the occurrence of a specified event such as the principal’s incapacity. 

5. How do I create a power of attorney? 

First, the power of attorney must be in writing. Prob C §§4022, 4124. Second, the principal needs to define what powers they are granting to their agent. For instance, this power could include the authority to open up a bank account, sell real property or trade stocks. Third, in order to be properly executed, the document needs to contain at least:

1. The date of its execution;
2. Is signed either (1) by the principal or (2) in the principal's name by another adult in the principal's presence and at the principal's direction; and
3. Is either acknowledged before a notary public or signed by at least two witnesses who meet the requirements of Prob C §4122.

There are numerous forms which may be used to create a power of attorney. The three most common are

1. The California statutory form. Prob C §4401;
2. Pre-printed power of attorney forms often found in stationery stores;
3. Attorney-drafted forms.

6. Who is eligible to draft a power of attorney? 

California law says that a natural person having the capacity to contract (think not crazy) may execute a power of attorney. Prob C §4120. All persons are competent to contract hold minors, persons of unsound mind and persons deprived of civil rights. CC §1556. 

7. What can the agent do? 

If the principal grants the agent a general power of attorney, the agent may essentially do anything that the principal could do. Prob C §4261. 

8. What can the agent not do? 

Surprisingly, an agent cannot amend the principal’s will. Prob C §4265. However, the agent may create, modify or revoke a trust if certain conditions are met. Prob C §4264.Furthermore, an agent may not perform acts that require the principal's personal attention. CC § 2304. An example of this would be where the principal has a unique talent, such as in music, and attempts to designate an agent to act in their place. For instance, if Tom Petty and the Heartbreakers, Metallica, Tool or Pink Floyd, tried to designate some awful band (use your imagination) as their agent to play their concerts for them, this would thankfully not work.

Moreover, the agent may not accept a second agency that puts the agent in a position that is adverse to the principal’s interests of the first agency. Prob C §4232. This would be a crystal- clear example of a conflict of interest. For example, if Peter selected Allen to be his agent to sell his home and simultaneously the buyer, Bridget, attempted to appoint Allen to be her agent in negotiating the same transaction, Allen would be barred from representing Bridget. 

9. Who may serve as the agent? 

In order to be eligible, the agent must have the capacity to contract. Prob C §4200. Consequently, all persons are capable of contracting except for minors, persons of unsound mind and persons deprived of civil rights. CC §1556; Fam C §§6500-7143; CC §§38-41. Thus the following people, at this moment in time, would arguably be ineligible to act as an agent: Justin Bieber, Charlie Sheen and Bernie Madoff. 

10. Can I revoke a power of attorney later on? 

Yes, a principal may revoke a power of attorney in accordance with the terms of the power of attorney or by a writing. Prob C §4151(a)(1)-(2). 

11. Does a power of attorney eventually terminate? 

Yes, a power of attorney will eventually terminate for a number of reasons. The power of attorney could be terminated due to

1. Death of the agent. Prob C §4152(a)(9);
2. Agent’s resignation. Prob C §§4152, 4207;
3. Agent’s incapacity to act. Prob C §4152(a)(7);
4. Dissolution of marriage where the ex-spouse was the agent. Probate Code §4154(a);
5. If a power of attorney is not durable, it terminates on the principal’s incapacity. CC §2356(a)(3);
6. Restoration of capacity in the case of a springing power of attorney;
7. Principal’s death. Prob C §4152(a)(4).

12. Is there a medical power of attorney? 

Yes, in California it is called an Advance Health Care Directive. In other states, the document is known as a living will. 

13. Does California recognize a power of attorney executed in
another state? 

Yes, a power of attorney validly executed in another state or jurisdiction is valid and enforceable in California regardless of whether the principal is a domiciliary of California. Prob C § 4053. 

14. Who should I select as my agent? 

Simply stated, a principal should select somebody who is knowledgeable and trustworthy. Unfortunately, I have come across countless stories of agents acting unscrupulously that left the principal in financial ruin. The key then is for the principal to perform their due diligence in making their decision. 

15. How much does a power of attorney cost? 

If you want to download the power of attorney provided for in Prob C § 4401, the printing cost is the only expense. A pre-printed form from Office Max or Staples is usually around $10. Finally, an attorney might charge a few hundred dollars or more to draft a power of attorney depending on the complexity.

You get what you pay for...........

California Power of Attorney

A power of attorney is a legal term that many people have heard of because of its occasional use in everyday life. For example, it is not uncommon for somebody (the principal) to grant to their friend (the agent) the authority to sign for them on the sale or purchase of a home if they unexpectedly have to leave the area. This aforementioned example has been used by my relatives numerous times.

However, there are very serious consequences when executing or allegedly executing a power of attorney, as illustrated by the following two cases. The point behind these two cases is to highlight the dangers of a power of attorney as due to the regular use of a power of attorney it is easy to mistakenly assume that a power of attorney is a simple legal document with minimal power. Thus, one should play close attention wherever they hear the term “power of attorney” lobbed around in a conversation due to its significant legal ramifications.  

Estate of Kraus (2010) 184 CA4th 103

On October 22, 2006, Janice Kraus, who was stricken with terminal cancer and semi-comatose, executed a power of attorney in favor of her brother David whereby David would serve as Janice’s agent. The very next day, October 25, 2006, David withdrew $197,402 of Janice's money from various bank accounts and deposited the funds into accounts held by David and David’s wife. 

One of the accounts was owned in joint tenancy by Janice and her mother, and other accounts had pay-on-death beneficiaries. Thus David would not inherit any of the money in Janice’s bank accounts. Janice’s estate plan included a revocable trust and pour-over will. The trust beneficiaries were the Regents of the University of California and the Make-A-Wish Foundation. 

On October 24, 2006, Janice passed away and shortly thereafter the trust beneficiaries of Janice’s estate came looking for David in light of his conduct. In response to allegations of misappropriation, David, surprisingly, denied that he was guilty of any wrongdoing. Undeterred by David’s brazen denial, the trust beneficiaries sued for return of the funds that David has misappropriated, $197,402 and also sued for double damages, $394,804, because David had allegedly misappropriated Janice’s property in violation of the California Probate Code. Prob C §859. Ultimately, in light of David’s wrongdoing, David was ordered to deliver $197,402 plus the statutory penalty of $394,804 to a court-appointed personal representative of the estate that was to be distributed to Janice’s beneficiaries.  

Jackson v. County of Amador (2010) 186 CA4th 514 

Jewel Jackson owned two rental houses in Ione, California. Ione is an old gold-mining town in the County of Amador situated on the foothills of the Sierra Nevada Mountains. 

Willie Norton, Jewel’s brother, executed a fraudulent power of attorney whereby Norton would serve as Jackson's agent. The problem with the power of attorney was that Jackson never signed the document as the principal and thus Norton was never appropriately granted the authority to act as Jackson’s agent. Nevertheless, Norton subsequently executed two quitclaim deeds in which Norton, purporting to act as Jackson's agent, transferred the two rental houses from Jackson to Norton. Of note, this would be a classic case of “self-dealing.” 

Norton then demanded that the tenants vacate the houses for reasons unknown. This caused Jackson to incur a loss of rental income, and in turn. Jackson was unable to timely make her mortgage payments for the two properties. Ultimately, Jackson was able to have the deeds recorded by her unscrupulous brother cancelled albeit after paying thousands of dollars in attorney fees. 

Durable Power of Attorney

A durable power of attorney for financial management is a legal written document in which a person, the principal, appoints another person, the agent or attorney-in-fact, to serve on their behalf.

For example, Patricia is leaving the country for a vacation and needs to sell her house. Patricia will not be able to sign all the necessary paperwork at closing. Hence, the sale will not go through. However, Patricia appoints Amber to be her agent so that Amber can sign on Patricia's behalf in order to sell her house.

In terms of estate planning, a power of attorney is used to guard against the unexpected incapacity of a person, since your bills will still become due regardless of your physical condition. For example, Patricia is involved in a car accident causing her to fall into a coma. If Patricia lacks a power of attorney, a court-appointed conservator of her estate is needed. For sake of argument, Patricia's conservator is named Charlize. Charlize' duties are to manage and use Patricia's property for both Patricia's benefit and those for whom Patricia is obligated to support, namely children. Prob C § 2401. In short, a conservatorship is public, costly and time-consuming.

Conversely, a power of attorney can accomplish the same objectives of a conservatorship without the need for public intervention, costly expenses or length of time. Thus, estate planning attorneys almost universally include a power of attorney when writing a comprehensive estate plan so as to avoid a conservatorship. Similarly, attorneys write others legal documents to avoid the need for court intervention in other estate planning situations. For instance, a trust avoids the need to probate a trust drafter's estate.

The key when drafting a power of attorney is to make sure it is durable. In that, the power of attorney must contain a statement that the power of attorney shall not be affected by subsequent incapacity of the principal, or shall become effective upon the incapacity of the principal, or similar words. Prob C §4124. If the power of attorney lacks the language required by Prob C § 4124, the agent lacks authority during the principal's incapacity. In our case, if Patricia's power of attorney did not contain the required language of Prob C § 4124, her power of attorney would not be valid should he become incapacitated. Thus, the power of attorney would essentially be a worthless document. Consequently, Patricia would then need a court-appointed conservator of her estate to manage her financial affairs and everybody but Patricia and her family would arguably benefit, the attorney, the conservator, the accountant, etc.

Finally, it should be noted that a power of attorney for financial management only relates to a person's estate, namely their finances. The other legal aspect of an individual is their "person." Decision relating an individual's "person" relate to health care decisions. The legal document used to coordinate an individual's health care decisions with an appropriate agent is called an advance health care directive. Prob C §§4600-4806.